Man appeals 128 year and a day Hampton prison sentence

HAMPTON — A Poquoson man sentenced to 128 years and a day in prison appealed his case this week to the state court of appeals.

Robert Via's petition for appeal comes five months after a Hampton Circuit Court judge imposed a jury's lengthy sentence recommendation. Via was found guilty in a September 2010 armed home invasion on Arlington Terrace Road in Hampton.

In March, a jury found 21-year-old Via guilty of conspiracy, armed burglary, robbery, four counts of abduction and firearms charges. The jury recommended that he spend 128 years and a day in prison — the mandatory minimum amount of time they could recommend, based on the charges he faced. The most time Hampton Circuit Judge Christopher Hutton could have suspended was 105 years, leaving Via with 23 years to serve.

Via's appellate attorney, Charles Haden, wrote that because the jury was not given sentencing guidelines and couldn't suspend any part of Via's sentence, this was a violation of his eighth amendment protection against cruel and unusual punishment.

"Appellant submits that the statutory deprivation of access to sentencing guidelines information is in fact constitutionally infirm, insofar as it deprives due process and equal protection of the law to those defendants that exercise their constitutional right to a trial by jury," Haden wrote.

This issue is not unique to Via's case. Juries in Virginia are not given sentencing guidelines and don't have power to suspend sentences. Those powers lie with the judge after the jury submits its sentencing recommendation. Judges can't increase a jury sentence recommendation, but they can reduce them, by suspending time.

"Although a Virginia judge has statutory authority to reduce the jury's sentence by suspending part of it, in practice and by custom, the judge rarely reduces or suspends a jury sentence," Haden wrote.

In August, the jury foreman wrote to Hutton and asked him to lower Via's sentence because the jurors didn't have access to sentencing guidelines.

"I, for one, was taken aback that even at meeting the minimum sentence allowed on each guilty count, we had no choice but to sentence Mr. Via to the minimum 128 years," the juror wrote Hutton. "You would be correct to infer that the jury granted what leniency was within our authority when we agreed on a sentence of 1 day for the single count of conspiracy."

In September Hutton imposed the entire sentence, calling it "appropriate."

"I do not take lightly his comments in this letter," Hutton said, referring to the juror's letter.

Hutton continued by saying that just because one juror felt the sentence was high, he has no way of knowing how the other jurors felt.

"I don't know anything that went on in the jury room," Hutton said. "I don't know if others felt differently ... I look at the jury's finding on Mr. Via's guilt on all charges ... I find no difficulty with the recommended punishment fixed by the jury."

Via was one of three men charged in connection with the home invasion. Co-defendant Samual Goodwin Sanchez pleaded guilty last year to robbery, abduction and firearms charges. Sanchez, 20, was sentenced by a judge to 13 years in prison, in contrast to the 128 years the jury is recommending for Via for similar charges. The third defendant, Reginald Jones, pleaded guilty Wednesday to robbery, abduction and firearms charges. Jones was sentenced to 11 1/2 years to serve in prison, according to court documents.

"I think it's always difficult to get the courts to change the existing system and rule something unconstitutional, so the odds are against us, but his case certainly ought to raise questions in the minds of any fair-minded person," Haden said Wednesday. "Why shouldn't the jury be able to recommend a suspended sentence? If the judge can do it, why should they be deprived of that ability where they think it's appropriate?"